166 P. 37 | Or. | 1917
delivered the opinion of the court.
A copy of all the evidence given at the trial is made a part of the bill of exceptions herein. From such transcript it appears that an agreement was concluded as follows:
“Made in Duplicate.
“Exchange Contract.
“This contract, made and entered into this 28th day of July, 1914, by and between F. H. Maxson of the County of Jackson and State of Oregon, party of the first part, and T. H. Johnson of the County of Jackson and State of Oregon, party of the second part, witnesseth: That the said party of the first part agrees*349 to sell to the party of the second part the following described personal property, to-wit: One planer, one resaw, one cut-off saw, one rip saw, thirty foot of shafting, belting, and pulleys. The said above property to be valued at $500. The above described property to be free and clear of all incumbrances. The said party of the second part hereby agrees to give in payment for the above described property dimension lumber at $9.00 a thousand feet and inch lumber at $10.00 a thousand feet to the amount of $500.00. The above lumber to be free and clear of all incumbrance. It is further agreed by and between the parties hereto that any balance due either of the parties shall be paid in cash. It is also further agreed by and between the parties that the party of the first part is to retain possession of the above described machinery until fully paid for in lumber.
“Witness our hands this 28th day of July, 1914.
“F. H. Maxson.
“,T. H. Johnson.
“In presence of
“E. Adamson.
“State of Oregon,
County of Jackson, — ss.
“Subscribed and sworn to before me this 28th day of July, 1914.
“E. Adamson,
“(Notarial seal.) Notary Public for Oregon.”
This agreement was never recorded. Mr. Maxson assisted in removing the machinery about eight miles to Johnson’s sawmill, where it was installed.
The evidence also shows that Johnson purchased from the defendant sawmill machinery of the value of $925, and he and his wife, on January 12, 1915, executed to the corporation a promissory note for that sum, $325 of which was payable June 1st of that year, $300 three months thereafter, and the remainder June
Without the consent of either party hereto Johnson sold the resaw to persons who took it to Talent, Oregon, where it was installed in a mill. By consideration of the federal court of Oregon a decree of bankruptcy was rendered against Johnson, who thereupon departed from the state. Pursuant to written notice an officer took possession of the machinery in Johnson’s sawmill in order to foreclose the chattel mortgage, no part of which had been paid and the first installment having matured. This action was then commenced, after notice had been served upon the defendant to surrender possession of the machinery Maxson had delivered, which demand was not complied with, and the defendant gave an undertaking and caused the property to be sold under the foreclosure, becoming the purchaser of the machinery.
The plaintiff as a witness in his own behalf testified in referring to the machinery:
“Q. What was the value of the property?
“A. Five hundred dollars.
“Q. About what portion of the lumber had you received?
“A. Well, I think I had somewheres about 30,000 feet that I received. * *
*351 “Q. The amount of the lumber you received would be of what value according to this contract?
“A. Well, it would amount to a little over $300; somewhere along there.”
The plaintiff, over objection and exception, was permitted to introduce testimony tending to show that in preparing the contract for an exchange of the machinery for lumber the word “possession” was inadvertently used in the clause for the term “title,” and it is insisted by defendant’s counsel that an error was committed in this respect. Mr. Maxson, referring to the man who prepared the agreement testified as follows:
“I told Mr. Adamson that I wanted a contract drawed that I could own the machinery until it was paid for.”
This sworn declaration is corroborated by Mr. Adamson, who testified:
“When I drew this contract I understood that the title was to remain in Mr. Maxson until the lumber was delivered, that he was to get so many thousand feet of lumber for this machinery, and that the title was to remain in him until fully paid for.”
The testimony of these witnesses seems to be substantiated by the phrase “agrees to sell,” as used in the exchange agreement.
“Where the terms of an agreement have been reduced to writing by the parties, it is to be considered ■ as containing all those terms, and, therefore, there can be, between the parties and their representatives or*353 successors in interest, no evidence of the terms of the .agreement other than the contents of the writing, except in the following cases: (1) "Where a mistake or imperfection of the writing is put in issue by the pleadings; (2) where the validity of the agreement is the fact in dispute”: Section 713, L. O. L.
Considering the plaintiff’s appeal it is contended that an error was committed in setting aside the verdict and judgment and granting a new trial. The question thus presented is whether or not such a mistake of law was perpetrated at the trial as would have necessitated a reversal of the original judgment if an appeal had been taken, thereby authorizing the court to act as complained of: De Vall v. De Vall, 60 Or. 493 (118 Pac. 843, 120 Pac. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291); Taylor v. Taylor, 61 Or. 257 (121 Pac. 431, 964); Smith & Bros. Typewriter Co. v. Mc
Another choice of remedies is recognized in some states of the Union where the rule prevails that a vendor, without rescinding the agreement, may resume possession of the goods, hold them subject to the contract, and enforce its performance against the vendee, who, upon payment of the purchase price, is entitled to a restoration of the property: 1 Mechem, Sales, § 615. Thus as illustrating a choice of the latter remedy it was held in Hamilton v. Highlands, 144 N. C. 279 (56 S. E. 929, 12 Ann. Cas. 876), that under a contract of conditional sale a default in the payment of a
In Thirlby v. Rainbow, 93 Mich. 164 (53 N. W. 159), a headnote reads:
“The question of the right of a vendee of personal property, the title to which was retained in the vendor until the payment of the purchase price, with the right to reduce it to possession in case of non-payment, to*357 recover the amount paid thereon in excess of what the vendor had a right to retain, cannot be tried in a replevin suit brought by the vendor after default in payment and refusal to surrender the property on demand. ’ ’
To the same purport is the case of Ryan v. Wayson, 108 Mich. 519 (66 N. W. 370), where it was held that upon the failure of a vendee to comply with the terms of a conditional sale the vendor was entitled to the possession of the property, although there was no express provision to that effect, and that in an action of replevin by the vendor under such a contract a judgment in favor of the vendee for the excess of the value of the goods over the unpaid purchase price was unauthorized, since the vendee had no special interest in the goods even if entitled to treat the contract as rescinded, but at most he had only a personal claim against the vendor.
Whether the defendant after filing an answer to the complaint herein showing no defense existed at law could have interposed a cross-bill in equity and set up an equitable interest in the demanded machinery by reason of being subrogated to Johnson’s right is not involved for no such proceedings were invoked. When the vendor has regained or is legally entitled to the possession of goods delivered under a contract of conditional sale, since the vendee’s claim to recover any of the payments that he may have made on account of the purchase price of the property is only personal (Ryan v. Wayson, 108 Mich. 519 (66 N. W. 370), we do not wish to be understood as intimating that an equitable defense is now available in an action of this kind, even under the amendment of Section 390, L. O. L.
Reversed.
Costs retaxed September 11, 1917.
Motion to Retax Costs.
(167 Pac. 271.)
On motion to retax costs. Motion sustained and costs allowed in favor of defendant.
Mr. W. E. Crews, for the motion.
Mr. F. J. Newmcm and Mr. T. W. Miles, contra.
Department 2. Mr. Justice Moore delivered the opinion of the court.